Even with “employment-at-will”? protections, problems can arise when terminating employees.

Employers that take the “employment-at-will” concept too literally can be looking at potential legal difficulties.  If a complaint is brought to court then a human factor from judges and juries come into play. The human factor can eliminate the “black and whiteness” of the employment-at-will concept and put you in danger of losing a large lawsuit.

Employment Law Attorney Jonathan Segal suggests employers follow these guidelines to protect themselves from the human factor of employee terminations:

            Use progressive discipline

            Use the same person who hired to fire

            Drop problem workers in the first 90 days

            When you document, cite specifics

            Avoid absolutes, but have absolute reasons for termination

            Do not list all of the little things

            Do not describe a problem worker in medical terms  

Unions and other organizations file lawsuit to block the new No-Match Rule implemented by the Department of Homeland Security (DHS).

The AFL-CIO, the American Civil Liberties Union (ACLU), the National Immigration Law Center (NILC) and the Central Labor Council of Alameda County recently filed a lawsuit to stop the new No-Match rule which is to go into effect September 14, 2007. The lawsuit was filed with the US District Court for the Northern District of California as AFL-CIO, et al. v. Chertoff, et al. (N.D. Cal. Case No. 07-CV-4472 CRB).

On August 31, 2007 the Court issued a restraining order against the DHS and SSA, restraining the two departments from implementing the final No-Match rule.  The order is in place until at the minimum October 1, 2007 when the hearing continues.  Due to the restraining order the 2006 No-Match letters from the SSA will also be delayed.

For additional information concerning the DHS No-Match Rule please see our past blog entry and/or go to ICE’s Safe Harbor / Information on No-Match website at: http://www.ice.gov/partners/safeharbor/index.htm.

Wal-Mart loses Minnesota state wage-hour lawsuit

In a recent lawsuit (Braun v Wal-Mart, Inc.), a Minnesota trial court ruled that Wal-Mart violated state law for failure to provide rest breaks and requiring employees to work “off the clock”. The court has already granted $6.5 million in compensatory damages to approximately 56,000 employees.  The court found that Wal-Mart’s failure to compensate their employees was “willful” and fines of $1,000 per violation may be imposed through Minnesota state law. With a finding by the state that Wal-Mart broke the law more than two million times, Wal-Mart could be looking at state fines exceeding $2 billion.  

Wal-Mart currently has more than 70 wage-hour suits pending.

StaffScapes review of the devastating labor initiatives on the November Ballot.

Initiative #93 would “allow an injured employee to bring an action in District Court for compensatory and punitive damages, if the employer fails to provide a safe and healthy workplace.” The term “safe and healthy workplace” is not defined in the initiative. This new action is available in addition to the rights that the employee has under the state’s Workers’ Compensation Act. This initiative would apply to every employer in the state with 10 of more employees.

Listed below is the potential impact of initiative #93:

Ø      Current state and federal laws exist to ensure safe and healthy working conditions for employees.

Ø      Colorado employers already have motivation to provide a safe workplace based on their workers compensation insurance costs being directly related to work injury severity and number of claims.

Ø      Initiative 93 will allow injured employees to “double-dip”, collecting benefits from the Workers’ Compensation Act and then filing a lawsuit against the employer for unlimited damages in district court.

Ø      Businesses will be hindered by additional financial burdens due to higher insurance costs, resulting in lost jobs and increases in the price for goods and services.

Ø      Puts the responsibility of defining what a “safe and healthy workplace” is in the hands of the district courts.

Ø      With the current backlog of court cases, Initiative 93 will result in trial lawyers looking for the “quick buck” through settlements.

Should trial lawyers be rewarded with an additional state law to allow them to threaten businesses who already have to meet state and federal safe workplace standards? Should Colorado business growth and employment be restricted in order to enact an unnecessary and superfluous law? Should employees be able to double-dip and receive full benefits from the Workers Compensation Act then sue the employer for unlimited damages? Do you want employers to pay more for insurance and defense against frivolous lawsuits or increase wages and employee benefits? Do you want individual district court judges deciding what is “safe” and “healthy” and what the “workplace” is?

If the organized labor initiatives are successfully passed this November, our state’s economic growth will be dramatically stunted for years to come. Please check past editions of our blog to view the other initiatives that can have a devastating impact to Colorado.

Sources: Tomlinson & Associates; Economic Development Council of Colorado